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EXHIBIT 10.2
OPTION REPRICING AGREEMENT
This Agreement dated as of June 29, 2000, is by and between TriPath
Imaging, Inc., its successors, assigns, officers, directors, stockholders,
agents, employees, subsidiaries and affiliates (hereinafter collectively
referred to as the "Company") and Xxxx X. Xxxxxx, his executors, heirs,
administrators, and assigns (hereinafter collectively referred to as "Xx.
Xxxxxx"). In consideration of the mutual covenants contained herein, the parties
agree as follows:
1. DUTIES AND RESPONSIBILITIES. Xx. Xxxxxx hereby relinquishes all
duties and responsibilities and hereby resigns as (a) a director of the Company,
and (b) any other position as an officer of the Company, except that Xx. Xxxxxx
shall remain as a consultant to the Company on terms to be negotiated. The terms
of the Severance Agreement between Xx. Xxxxxx and the Company dated October 27,
1999 (the "Severance Agreement") shall continue to apply to the relationship
between Xx. Xxxxxx and the Company until a new agreement is negotiated. The
Company may, at its sole discretion, terminate Xx. Xxxxxx'x consulting
activities and terminate the Severance Agreement, except that Xx. Xxxxxx shall
be entitled to receive the severance payment described in the fourth "bullet" of
the Severance Agreement and Xx. Xxxxxx shall be entitled to any payments earned,
prior to any such termination, in accordance with the third "bullet" of the
Severance Agreement. The resignation of Xx. Xxxxxx'x role as a director and
officer of the Company is effective as of the close of business on June 30,
2000.
2. COMPENSATION. The Board of Directors of the Company has approved,
subject to Xx. Xxxxxx'x execution of this Agreement, an amendment to all
outstanding options held by Xx. Xxxxxx to purchase shares of the Company's
common stock, $0.01 par value (the "Common Stock") (totaling options to purchase
298,249 shares) to change the exercise price of such options to $.20 per share
and to change the term of such options so that they expire at 11:50 p.m. EST on
June 30, 2000. Concurrently with the execution of this Agreement, all such
options are hereby amended to reflect such change in the exercise price and the
term of such options. The exercise of these options must be accompanied by a
payment of $59,650 to the Company.
3. RETURN OF PROPERTY. Xx. Xxxxxx shall return all papers, files,
documents, drawings, computers, reference guides, equipment, software, computer
access codes, disks and institutional manuals, or other property belonging to
the Company that relate solely to his role as a director and officer as quickly
as practicable. Xx. Xxxxxx shall return all of such items that relate to
consulting duties at such time as that relationship is terminated. Xx. Xxxxxx
shall not retain any copies, duplicates, reproductions or excerpts thereof.
4. NON-COMPETITION. Xx. Xxxxxx shall continue to be bound for a period
of 12 months by the terms of any non-competition and assignment of inventions
agreements which he may have executed at any time between him and the Company or
any of its predecessors (including NeoPath, Inc.).
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5. LOCK-UP OF SHARES. Xx. Xxxxxx agrees that, during a period of 90
days from the date of this Agreement, he will not, without the prior written
consent of the Company, directly or indirectly, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant for the sale of, or
otherwise dispose of or transfer any shares of the Company's Common Stock or any
securities convertible into or exchangeable or exercisable for Common Stock,
whether now owned or hereafter acquired by Xx. Xxxxxx or with respect to which
Xx. Xxxxxx has or hereafter acquires the power of disposition or (ii) enter into
any swap or any other agreement or any transaction that transfers, in whole or
in part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction is to be settled by delivery
of Common Stock or other securities, in cash or otherwise.
6. GENERAL RELEASE. In consideration of the benefits set forth in this
Agreement, Xx. Xxxxxx, for himself, his executors, heirs, administrators,
assigns, and anyone else claiming by, through or under him, irrevocably and
unconditionally remises, releases, and forever discharges the Company (including
all officers, directors and affiliates thereof and all officers, directors,
partners and affiliates of any subsidiary thereof) from, and with respect to,
any and all debts, demands, actions, causes of action, suits, covenants,
contracts, wages, bonuses, damages and any and all claims, demands, liabilities,
and expenses (including attorneys' fees and costs) whatsoever of any name or
nature both in law and in equity ("Claims") which Xx. Xxxxxx now has, ever had
or may in the future have against the Company by reason of any matter, cause or
thing which has happened, developed or occurred before the signing of this
Agreement, including, but not limited to, any and all suits in tort or contract,
and any Claims or suits relating to the breach of an oral or written contract,
misrepresentation, defamation, and interference with prospective economic
advantage, interference with contract, intentional and negligent infliction of
emotional distress, negligence, breach of the covenant of good faith and fair
dealing, and any Claims arising out or in respect of (i) the Senior Management
Employment Agreement between Xx. Xxxxxx and NeoPath, Inc. dated as of February
27, 1997 and (ii) the Severance Agreement (together, the "Management
Agreements"), which Xx. Xxxxxx ever had, now has, or claims to have against the
Company (including all officers, directors and affiliates thereof and all
officers, directors, partners and affiliates of any subsidiary thereof). Xx.
Xxxxxx further agrees not to institute any charge, complaint, or lawsuit to
challenge the validity of this Agreement or the circumstances surrounding its
execution. This release excludes any and all Claims arising under the Severance
Agreement after the effective date of this Agreement.
To the extent they are still in effect and except as provided Section
1, the Management Agreements are hereby terminated effective as of the date
hereof.
7. CONFIDENTIALITY OF THIS AGREEMENT. Both the Company and Xx. Xxxxxx
agree that both will keep the background, negotiations, and terms of this
Agreement strictly confidential and not disclose, directly or indirectly, any
information concerning them to any third party, with the exception of either
party's financial or legal advisors, provided that they agree to keep such
information confidential and not disclose it to others and except as required by
law.
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8. NON-DISPARAGEMENT. Xx. Xxxxxx agrees that he will not disparage or
make negative statements about the Company or any of its officers, trustees,
agents, employees, successors and assigns. The Company agrees that it will not
disparage or make negative statements about Xx. Xxxxxx. This Agreement in no way
restricts or prevents the Company from providing truthful responses to reference
checks on Xx. Xxxxxx or truthful testimony concerning Xx. Xxxxxx as required by
court order or other legal process. In addition, this Agreement in no way
restricts or prevents Xx. Xxxxxx from providing truthful testimony concerning
the Company as required by court order or other legal process.
9. CONSIDERATION. Xx. Xxxxxx acknowledges that in exchange for entering
into this Agreement he has received good and valuable consideration in excess of
that to which he would otherwise have been entitled in the absence of this
Agreement. Xx. Xxxxxx further acknowledges the sufficiency of that
consideration.
Xx. Xxxxxx acknowledges that he has carefully read this Agreement,
voluntarily agrees to all of its terms and conditions, understands its contents
and the final and binding effect of this Agreement, and signs the same as his
own free act with the full intent of releasing the Company from all claims.
10. SEVERABILITY. If any of the terms of this Agreement shall be held
to be invalid and unenforceable, the remaining terms of this Agreement are
severable and shall not be affected thereby.
11. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties about or relating to Xx. Xxxxxx'x relationship with the
Company, or the Company's obligations to him with respect to his relationship
with the Company and fully supersedes any and all prior agreements or
understandings between the parties regarding Xx. Xxxxxx'x relationship with the
Company. The terms of this Agreement are contractual in nature and not a mere
recital, and they shall take effect as a sealed document. This Agreement shall
be governed by the laws of the State of Delaware. This Agreement may not be
changed orally, but only by agreement in writing signed by both parties. The
parties attest that no other representations were made regarding this Agreement
other than those contained herein.
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Witness the execution hereof under Seal this 29 day of June, 2000.
TRIPATH IMAGING, INC.
By:__________________________________ ________________________________
Name: Xxxx X. Xxxxxx
Title:
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